1993 PLP 1940 (MLD)

2. Brief facts of the case are, that Shrine of Sain Jamal Shah situated at village Mandiala Waraich, Tehsil and District Gujranwala was taken over by the petitioner under the provisions of West Pakistan Waqf Properties Ordinance, 1961. It had an area measuring 35K‑15M comprising Khasra Nos. 1942, 1943, 1944/1, 1967, 1966 and 3411/1118 attached to the shrine which came under the management of the Auqaf Department. During the consolidation operations, the above area which was extremely valuable and worth lacs of rupees was exchanged with land measuring 35K‑10M comprising Khasra Nos. 3663‑64, 788, 789, 791‑1‑2, 793‑3185/785, 3411‑1118 and 794 owned by respondent No.l Mian Munawar Hussain etc. The consolidation scheme of the village was confirmed on 30‑12‑1977. Aggrieved by this, respondents Nos.5 to 7 who claim to be (MAJAWAR) of this Shrine on the basis of their possession as "(MALIK BILA MIKANA)" for the last hundred years, filed an appeal before the Additional Deputy Commissioner (Cons.) who rejected the same vide order dated 4‑8‑1980. It was held by the learned Additional Deputy Commissioner (Cons.) that respondents Nos.5 to 7 were holding this land simply as tenants and had no locus standi. The revision petition filed by the respondents Nos.5 to 7 against this was also dismissed on 7‑4‑1981 and 2‑2?1983 by the Additional Deputy Commissioner (Cons.) and Member (Cons.), Board of Revenue, Punjab, respectively. In the impugned order, the learned Member had held that respondents Nos.5 to 7 have absolutely no locus standi as the various consolidation authorities had rightly held them as simply tenants. So far as the present petitioner i.e. Auqaf Department is concerned it had conveyed its consent for the consolidation and exchange of the land of the Auqaf Department vide letter No. ACZ‑1(4)‑102/77(4154) dated 8‑12‑1977 issued by the Administrator (Auqaf), Central Zone, Lahore.

3. Subsequently, the petitioner filed a Writ Petition No. 5290/83 in the Lahore High Court, Lahore and the same was disposed of as withdrawn on 20‑3‑1989. In view of the contentions raised in the said writ, the counsel for the petitioner filed review petition on 6‑4‑1989 basing his contentions on Board of Revenue Letter No.2370‑83/1479 dated 22‑9‑1983, which inter alia contained specific direction to the consolidation authorities that Waqf land should be kept out of the purview of consolidation operations. The petitioner after obtaining a copy of the order of the Lahore High Court dated 20‑3‑1989 which was supplied to him on 5‑4‑1989 filed, the present review petition on 6‑4‑1989.

4. I have heard the counsel of the respective parties at length. Relevant record has also been examined.

5. It was argued by the learned counsel for the petitioner that the exchange of the Auqaf land which was extremely valuable with the land of respondents Nos. 1 to 4, worth about hardly a few thousand rupees was collusive and amounted to an outright fraud to deprive the Department of its valuable rights. The so‑called letter of consent issued by the Administrator (Auqaf), Central Zone, Lahore was incompetent and without authority. Under the Rules, only the Chief Administrator of Auqaf was competent to grant `NOC'. Accordingly, the consolidation scheme of the respective parties was a nullity in the eye of law. My attention has also been drawn to the contents of letter of the Board of Revenue referred to above wherein a reference to earlier letter dated 16‑10‑1978 has been made. According to the contents of the aforesaid letter, it was directed that all Waqf land should be kept out of the purview of consolidation operations. In the circumstances, it was argued that the consolidation staff had acted beyond its authority by exchanging the extremely valuable area of the Auqaf Department with the land of respondents which was hardly worth about a fraction of the value of the land of Auqaf Department. It was thus contended that the impugned order is liable he reviewed and the aforesaid land of the Auqaf Department should be restored in lieu of land of respondents Nos. 1 to 4 which should be reallocated to them.

6. On the other hand, counsel for the respondents Nos. l to 4 argued that the present petition is hopelessly time‑barred. There is no provision for condonation of delay under section 8 of the Board, of Revenue Act. Furthermore, High Court in its order dated 20‑3‑1989 had given no specific direction to the petitioner to file a review. Counsel for the petitioner before the High court had simply withdrawn his writ in order to enable him to file a review petition in the light of Board of Revenue letter dated 22‑9‑1983 referred to above. It was also stated that Auqaf Department in exchange, had been given land of similar classification and the Department had been giving it on yearly lease for the last so many years. In view of this fact, Auqaf Department has no genuine grievance and at this belated stage the petitioner cannot take the plea that 'NOC' was not issued by the competent authority. So far as review was concerned, the learned counsel for the respondents Nos. 1 to 4 urged that there was absolutely no ground or justification for the same. There is neither any new material evidence not earlier in the knowledge of the petitioner which has been now produced nor there is any apparent mistake or error in the impugned order or any sufficient reason which could be considered as a justifiable ground for such a review. Hence the review being incompetent merits outright rejection.

7. I have carefully considered all the evidence and the arguments advanced by both the counsel and also the various rulings produced by the counsel for the respondents. Before discussing the merits of these arguments, the present case between the parties can be better appreciated in the light of various circulars of Board of Revenue which have been issued from time to time for the guidance of the field staff. In all those circulars, it has been emphasised that during consolidation proceedings, land belonging to Government Departments should not be made subject to consolidation operations. It has been repeatedly and specifically stated by the Board of Revenue that Consolidation Officer is himself responsible to watch the land of all the Departments and especially in case of Auqaf Department. These instructions were issued as early as in 1961 vide Letter No. 1687‑61/1460 CHIP) dated 18‑7‑1961. This was further elaborated vide Board of Revenue Memo. No.10(10) DWP/Auqaf/70, dated 10‑8‑1970 clearly stating that Waqf land should not be shifted to disadvantageous position. It appears that these instructions at the time 'of 'consolidation work in the said village were flagrantly violated and obviously it does not appear to be without motives. I am further supported in coming to this conclusion by the so?called consent of the Administrator (Auqaf), Central Zone, Lahore which is said to have been conveyed vide his letter dated 8‑12‑1977. For proper appreciation of the facts, it would be relevant to reproduce this letter which reads as under:‑‑‑ The above reading makes it clear that it was in response to a letter from consolidation staff. The circumstances as such indicate that Administrator Auqaf was lured into approving consolidation operations in the village. However, on noticing that the Department had been deprived of its valuable land, he at once addressed another letter dated 26‑12‑1979 which reads as under:‑‑‑ From the perusal of the above, it is crystal clear that there was no written consent of any officer on the consolidation scheme register which is mandatory. Had there been any, the above letter would not have been written. Thus the consolidation staff in connivance with respondents Nos.l to 4 intentionally failed to take any action or rectify the serious irregularity which in the instant case amounts to an illegality. The perusal of the first letter dated 7‑12‑1977 shows that strictly speaking it was never consent, but a mere suggestion. By no stretch of imagination, it could be construed to be an "NOC". Thus the very basis by which the land of the Auqaf Department was included in the consolidation operations falls to the ground and is not sustainable.

8. The contentions of the counsel for the respondents Nos. 1 to 4 that the petitioner was? given land of similar classification is not borne out from the record. From the perusal of the lease documents, I find that the land of the respondents Nos. 1 to 4 which came to the Auqaf Department was leased out at extremely nominal price of Rs. 1,200 for Rabi 1978 and it could not fetch snore than Rs. 2,000 for the period Kharif 1978 to Rabi 1979. Under the circumstances, 1 am constrained to conclude that respondents Nos. 1 to 4 have cleverly manoeuvred to get valuable land of the Auqaf Department in exchange of their land which was hardly worth a fraction of the land of the Auqaf Department. This is simply proved by the fact that these respondents immediately surrendered their land to the Auqaf Document in order to have this exchange achieve the status of a fait accompli.

9. Obviously, the contents of the letters of the Administrator (Auqaf), Central Zone, Lahore dated 8‑12‑1977 and 26‑12‑1979 and their import could not be brought to the notice or properly appreciated by the learned Member, Board of Revenue at the time of passing of the impugned order, nor the exact value of the land of the respondents Nos. 1 to 4 could he noticed which is now evident from the lease documents. This obviously resulted in a patent error fully justifying a review .

10. Furthermore. as discussed above, the consolidation staff have no authority to subject the land of Auqaf Department to consolidation proceedings in view of the instructions issued as early as 1960 and those contained in letter dated 22‑9‑1983 relied upon by the counsel for the petitioner. Thus the order of the Consolidation Officer with respect to the land of the parties dated 30‑12‑1977 was a nullity in the eye of law. There could not be any question of time limit against an order which is ultra vires or otherwise is null and void. There was no permission for consolidation of the Auqaf land from the competent authority and the so?-called permission was in the nature of a suggestion from the Administrator Central Zone, Lahore. This can never be interpreted as even a half‑hearted consent.

11. As such I have no other option in the light of above discussion but to review the impugned order. Accordingly it is directed that the consolidation scheme of the respective parties is hereby set aside with the result that the previous land, of the Auqaf Department shall be restored in lieu of the previous land of respondents Nos. 1 to 4 who are re‑allocated their previous land.

12. So far as respondents Nos. 5 to 7 are concerned, it has been fully established that they were earlier in possession of the Auqaf land simply as tenants and had no locus standi to claim any right in the same. As such, the Auqaf Department shall be free to utilise its land in the best manner it deems fit. A copy of this order will be sent to the Auqaf Department and also to Additional Commissioner, Gujranwala for initiating disciplinary action under (E&D) Rules against the Consolidation officer who confirmed the consolidation scheme of the parties on 30‑12‑1977 in total disregard of the instructions of the Board of Revenue as discussed in para. 7 of this order, H.B.T./511/R? Review allowed